The  Lawyer  as  an  Artist. 


Address  before  the  Women  Lawyers'  Club  of  New 
York  City  at  its  meeting  February  23, 
1905,  at  the  National  Arts  Club,  37 
West  34th  Street,  New  York. 


BY 

WALTER  S.  LOGAN. 


lEx  ICtbrtH 


SEYMOUR  DURST 


When  you  leave,  please  leave  this  book 

Because  it  has  been  said 
"Ever'thing  comes  t'  him  who  waits 

Except  a  loaned  book." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


THE  LAWYER  AS  AN  ARTIST. 


Webster  defines  science  as  "  accumulated  and  established 
knowledge."  He  defines  art  as  "  the  application  of  knowl- 
edge or  power  to  practical  purposes." 

J.  F.  Genung  says : 

"  Science  is  systematized  knowledge ;  art  is  knowl- 
edge made  efficient  by  skill." 

Jurisprudence  is  the  science  of  the  law,  its  statics. 

Its  dynamics  are  in  the  everyday  work  of  the  lawyer  who 
makes  efficient  by  his  skill  as  an  artist  the  knowledge  that 
is  found  in  the  jurisprudence.  The  good  lawyer  is  the  man 
who  practices  his  profession  as  a  live  art,  the  man  who 
accomplishes  things. 

We  have  lawyers  who  devote  themselves  to  jurisprudence, 
who  are  very  learned  in  the  law ;  but  unless  they  combine 
the  skill  of  the  artist  with  the  knowledge  of  the  scientist 
they  are  not  the  moving  factors  in  our  profession.  The 
opinion  of  such  men  even  on  a  pure  and  simple  question 
of  law  is  sometimes  less  to  be  relied  on  than  the  opinion  of 
the  practical  man  whose  feet  touch  earth  and  whose  head 
is  far  below  the  sky.  I  would  often  rather  have  a  good 
guess  from  some  lawyers  I  know  who  could  not  quote 
authorities,  but  whose  nervous  systems  are  well  attuned  to 
the  practice  of  the  profession,  than  the  labored  researches 
of  other  lawyers  who  are  fuller  of  precedents,  but  who  are 
without  the  quick  practical  judgment  that  characterizes  the 


man  of  action.  It  is,  however,  comparatively  seldom  that 
the  lawyer  is  called  upon  for  a  legal  opinion  on  a  straight 
and  simple  question  of  law.  In  practical  life  the  facts  and 
the  law  get  most  irretrievably  mixed  and  it  takes  the  artist 
to  sort  them  out.  The  scientist  may  be  of  use  after  the  sort- 
ing has  been  done,  but  he  is  almost  helpless  if  he  has  to  do 
the  sorting.  The  giving  of  opinions,  however,  is  a  small 
part  of  a  lawyer's  real  work.  Clients  come  to  us  for  results, 
not  for  opinions.  The  lawyer  that  the  client  seeks  and  that 
the  community  needs  is  the  man  who  can  do  things,  who 
can  get  results,  who  can  save  the  situation. 

They  tell  a  story  of  the  campaign  in  the  Wilderness.  One 
of  the  commanders  had  to  put  his  army  across  a  river  which 
could  neither  be  forded  nor  ferried,  so  he  had  to  have  a 
bridge.  The  engineers  went  to  work  busily  upon  the  plans, 
but  there  was  a  practical  country  carpenter  in  one  of  the 
regiments  who  made  his  way  to  headquarters  and  said: 
"  Gineral,  if  you  want  a  bridge  I  kin  build  you  one."  The 
general  said :  "  Go  out  and  see  what  you  can  do  and  report 
to  me  at  6  o'clock  to-night."  At  6  o'clock  the  country 
carpenter  was  there  with  his  report,  as  follows :  "  Gineral, 
that  bridge  is  built  and  the  army  is  on  its  way  over,  but 
them  picters  that  them  other  fellers  is  making  ain't  done 
yit."  The  practical  man  had  put  the  army  across  the  river 
while  the  engineers  were  designing  the  bridge.  The  situa- 
tions that  are  to  be  saved,  the  triumphs  that  are  to  be  won, 
do  not  always  wait  for  logical  sequences.  A  lawyer  who  is 
called  up  by  his  client  at  10  minutes  to  3  in  the  afternoon 
for  instructions  how  to  close  out  a  hundred  thousand  dollar 
trade  before  3  o'clock,  so  as  to  save  his  client  from  loss  and 
prevent  a  suit  for  damages,  has  not  much  time  to  examine 
law  books.  The  real  artist  of  a  lawyer  at  such  a  moment 
will  firmly  grip  the  rudder  and  steer  his  client  safely  through. 
The  scientist  lawyer  will  logically  work  out  some  plan  for 
his  client's  salvation,  perhaps,  but  too  late  to  save  him.  The 


4 


lawyer  artist  will  win  fame  and  money  while  the  lawyer 
scientist  grows  poor. 

Here,  therefore,  to-night,  in  the  galleries  of  the  National 
Arts  Club  where  we  are  assembled,  I  plead  the  cause  of  the 
lawyer  as  an  artist  before  an  audience  who  were  artists 
before  they  were  lawyers. 

The  lawyer  is,  I  claim,  the  highest  product  of  human 
evolution.  The  civilization  of  any  nation  may  be  measured 
by  the  number  of  its  lawyers.  It  is  not  necessary  for  me 
to  prove  in  this  place  and  before  this  audience  that  the 
United  States  is  the  most  civilized  nation  in  the  world,  and 
the  statistics  show  that  it  has  twice  as  many  lawyers  in 
proportion  to  its  population  as  any  other  country  has.  Eng- 
land comes  next  in  the  degree  of  its  civilization  and  in  the 
number  of  its  lawyers.  France  and  Germany  follow.  Russia 
has  more  priests  and  less  lawyers  in  proportion  to  the  popu- 
lation than  any  other  country  in  Europe,  and  if  you  pass 
over  to  the  Orient,  where  modern  civilization  is  struggling 
with  ancient  barbarism,  you  have  to  search  far  and  long 
before  you  can  find  a  lawyer  of  any  kind. 

There  is  another  reason  for  the  great  prevalence  of  law- 
yers among  the  English-speaking  peoples  of  the  world.  We 
were  the  first  race  to  safeguard  our  liberties  by  institutions, 
and  it  is  only  where  liberty  has  been  so  safeguarded  that 
the  science  of  jurisprudence  or  the  art  of  practising  law 
can  flourish.  In  every  country  in  the  world  where  any 
other  language  is  spoken  the  declaration  or  complaint  or 
petition  which  is  the  initiatory  proceeding  in  a  lawsuit  ends 
with  a  prayer  for  judgment.  Among  our  English-speaking 
commonwealths  alone  do  we  conclude  with  a  demand.  For 
a  long  time  in  England  the  distinction  was  made  between 
a  declaration  at  common  law  and  a  bill  in  equity.  The 
common  law  declaration  demanded  judgment,  the  bill  in 
equity  prayed  for  it.  The  original  theory  was  that  at  law 
the  suitor  was  seeking  his  rights ;  in  equity  he  was  asking 


5 


a  favor.  But  the  reason  and  the  result  have  both  disap- 
peared. Into  a  modern  equity  court  the  suitor  comes  now 
as  much  as  a  matter  of  right  as  into  a  court  of  law,  and  so, 
wherever  the  English  language  is  spoken — with  few  excep- 
tions which  are  matters  of  form  only — we  conclude  our 
initial  equity  pleading  with  a  demand  for  judgment.  The 
English-speaking  suitor  has  no  favor  to  ask  when  he  comes 
into  court.  He  comes  to  demand  a  right.  No  other  race 
in  the  world  pays  such  a  regard  to  judicial  precedent  as  we 
do.  I  called  on  a  prominent  lawyer  in  the  City  of  Mexico 
one  time.  I  asked  him  to  show  me  his  library.  L  would 
like  to  look,  I  said,  at  the  decisions  of  their  Supreme  Court. 
He  said :  "  Mr.  Logan,  we  have  no  decisions  as  you  under- 
stand the  word.  I  can  show  you  a  book  of  sentences — 
judgments  in  particular  cases — but  our  courts  decide  each 
case  upon  its  particular  equities  without  regard  to  previous 
decisions."  If  a  judge  who  is  in  charge  of  a  case  thinks 
that  a  rule  laid  down  in  some  other  case  would  not  work 
equity  in  the  case  he  is  trying,  or  is  not  to  his  liking,  he 
disregards  it.  If  he  is  a  just  judge  he  seeks  to  do  justice 
in  that  case  without  regard  to  any  other  cases  that  have 
ever  been  decided  by  any  other  judge.  The  theory  is  a 
beautiful  one,  but  in  practice  it  is  arbitrary  in  the  extreme. 
It  puts  the  judge  above  the  law.  Under  our  practice  the 
judge  is  nothing,  the  court  is  everything,  the  law  is  supreme. 
Under  the  Latin  practice,  which  prevails  now  in  most  coun- 
tries which  speak  some  other  language  than  ours,  the  judge 
is  supreme.  He  is  bound  by  the  law  if  it  is  in  the  form 
of  a  statute,  but  he  knows  no  other  law.  Precedent  is  of 
little  importance. 

No  other  race  in  the  world  dignifies  its  lawyers  as  ours 
does.  With  us  the  lawyer  is  a  part  of  the  court.  The 
court  consists  of  one  or  more  lawyers  on  one  side  the  bench 
and  all  the  other  lawyers  on  the  other  side.  It  is  the  duty 
of  the  lawyers  before  the  bench  to  present  the  facts  and 


6 


make  the  arguments.  It  is  the  duty  of  the  lawyers  behind 
the  bench  to  decide  conflicting  points  of  evidence  and  deter- 
mine disputed  points  of  law. 

There  is  now  but  little  difference  in  dignity  between  the 
lawyers  on  one  side  of  the  bench  and  the  other.  In  Eng- 
land the  lawyers  on  both  sides  wear  wigs  and  gowns  to 
differentiate  them  from  the  rest  of  the  world.  In  this  coun- 
try we  have  not  adopted  the  wig,  and  the  gown  when  worn 
is  confined  to  the  lawyers  behind  the  bench — and  to  the  lady 
lawyers  in  front.  The  logic  of  the  English  practice  is 
better  than  ours.  The  judge  is  no  more  sacred  than  the 
advocate.  The  reason  we  do  not  wear  the  gown  before  the 
bar  here  is,  I  imagine,  because  we  are  in  too  much  of  a 
hurry  and  do  not  care  to  take  the  time  to  put  it  on. 

Among  all  the  other  races  in  the  world  the  lawyer  is 
regarded  simply  as  a  servant  of  the  court.  The  initiative 
is  taken  by  the  judge.  The  examination  of  witnesses  is 
usually  conducted  by  the  judge.  Cross-examination  is  an 
unpractised  art.  The  lawyer  is  little  more  than  an  attendant 
of  the  court  to  do  its  bidding.  I  remember  being  interested 
in  a  case  tried  in  a  country  where  the  practice  introduced 
by  the  Code  Napoleon  prevailed.  When  testimony  was 
taken  the  witness  and  the  judge  retired  to  a  closet  and  the 
testimony  was  taken  in  secret.  I  asked  a  lawyer  friend  of 
mine  what  the  judge  did  in  the  closet.  The  answer  was: 
"  He  took  evidence."  I  asked  if  he  took  anything  else, 
and  the  reply  was:  "  Not  if  he's  an  honest  judge." 

All  the  lawyer  can  do  is  to  wait  outside  till  the  judge 
gets  through  with  the  witness,  and  then  later,  when  he  is 
given  a  copy  of  the  testimony,  he  has  the  distinguished 
honor  of  being  allowed  to  file  a  brief. 

No  wonder  is  it  that  the  lawyer  as  an  artist  flourishes 
only  where  the  tongue  of  Blackstone  is  spoken. 

The  trial  is  the  distinguishing  characteristic  of  our 
Saxon  jurisprudence.    There  comes  a  time  in  the  history 


7 


of  every  litigation,  if  it  pursues  its  natural  course,  when 
plaintiff  and  defendant  must  be  opposed  to  one  another  on 
the  firing  line  in  court  and  the  case  must  be  tried.  The 
judge  is  there  to  help  neither  plaintiff  nor  defendant.  He 
is  not  there  to  conduct  the  trial.  That  is  done  by  the  law- 
yers. He  is  there  simply  to  decide  disputed  questions  which 
arise  in  the  course  of  the  trial  and  to  keep  order.  Where 
the  lawyers  agree  the  judge  has  little  to  do.  Where  the 
lawyers  differ  he  decides  between  them. 

It  is  an  atmosphere  in  which  the  lawyer  as  an  artist  flour- 
ishes. 

The  Saxon  suitor  has  been  brought  up  in  the  civilization 
of  self-reliance.  He  has  made  his  own  way  in  the  world 
from  the  beginning.  He  has  lived  under  no  paternal  gov- 
ernment. The  rain  of  Heaven  has  not  been  showered  on 
him  for  his  virtues  or  withheld  from  him  for  his  sins.  He 
has  had  just  what  he  could  win.  He  is  in  court  just  what 
he  is  in  his  everyday  life — a  man  fighting  the  battles  of  the 
world  on  his  own  account,  asking  favors  of  nobody  and 
seeking  not  for  any  privilege,  but  simply  for  his  rights.  In 
court  as  out  of  court  all  he  asks  for  is  a  fair  field  and  no 
favors — an  even  chance.  The  lawyer  is  the  representative 
of  the  suitor,  and  he  occupies  a  position  of  dignity  which 
the  lawyer  of  no  other  race  in  the  world  can  approach. 
Among  no  other  peoples  of  the  world  is  there  a  provision 
in  their  jurisprudence  for  the  real  equivalent  of  our  trial. 
Among  other  peoples  a  lawsuit  progresses  from  its  inception 
to  its  end,  and  some  result  is  evolved,  but  the  result  is  ordi- 
narily reached  not  by  a  decisive  trial  at  some  point  in  the 
history  of  the  litigation,  but  by  a  gradual  progress  from  the 
beginning  to  the  end.  Some  other  countries,  it  is  true,  have 
copied  our  constitutions  and  imitated  our  institutions  and 
have  evolved  something  the  apparent  equivalent  of  our  trial, 
but  it  is  a  graft  upon  an  uncongenial  stock,  and  while  the 
Saxon  form  is  there  it  is  the  Latin  spirit  that  prevails.  The 


8 


judge  is  till  the  dominant  figure.  The  lawyer  takes  a  baek 
seat.    The  artist  has  no  chance. 

The  dignity  of  our  profession  among  our  Saxon  peoples 
is  due  to  the  fact  that  in  the  administration  of  justice  the 
lawyer  does  take  the  principal  part.  The  genius  of  the 
artist  is  called  for.  The  judge  is  only  an  incident.  The 
law,  with  the  artist  lawyer  as  its  instrument,  rules  supreme. 

Ours  is  truly  a  land  governed  by  law.  I  had  some  busi- 
ness one  time  which  led  me  to  have  an  interview  with  the 
President  of  one  of  the  Latin  republics  of  our  continent. 
It  related  to  a  railroad  that  was  partly  in  his  country  and 
partly  in  ours.  He  asked :  "  What  does  your  President,  Mr. 
McKinley,  think  about  this  matter?  "  I  said:  "  The  courts 
have  decided  in  our  favor.  Mr.  McKinley  himself  has  prob- 
ably never  heard  of  it."  "What!"  he  replied,  "an  import- 
ant case  like  this  escapes  the  notice  of  your  President!"  It 
was  hard  for  him  to  understand  that  on  this  side  the  border, 
where  we  speak  the  English  language,  the  executive  had 
no  judicial  power  or  influence.  On  our  side  the  border  it 
was  not  what  President  McKinley  thought,  but  what  the 
courts  decided  to  be  the  law,  that  controlled  the  situation. 

Of  course  it  would  be  unfair  to  compare  our  system  with 
that  of  Russia,  where  the  will  of  an  autocrat  is  all  the  law 
there  is.  He  may  lay  down  rules  for  his  own  convenience 
which  he  may  call  the  law,  but  the  rules  he  lays  down  are 
binding  only  so  long  as  he  chooses  to  follow  them.  In 
Russia  the  executive  power  is  everything.  There  are  no 
courts  that  are  free  and  independent  like  ours,  and  a  court 
that  is  not  free  and  independent  of  the  executive  power  is 
no  court  at  all.  The  artistic  practice  of  the  law  in  such 
a  country  and  under  such  conditions  cannot  flourish.  The 
lawyer  as  such  cannot  be  an  important  factor  in  the  social 
economy.  But  on  all  the  Continent  of  Europe  the  same 
conditions  prevail,  though  in  a  less  degree.  The  Kaiser 
chafes  under  his  restraints  and  yearns  for  a  free  hand  like 


9 


his  cousin  the  Czar,  though  I  think  the  developments  of  the 
last  few  months  have  somewhat  modified  his  yearnings  in 
that  regard.  In  France,  though  it  is  a  republic,  the  courts 
are  more  or  less  under  executive  influence.  No  jurisprudence 
based  on  the  Code  Napoleon  can  be  the  basis  of  free  courts 
such  as  we  have.  The  common  law  was  evolved  by  a  coun- 
try that  loved  its  liberties.  The  Code  Napoleon  was  the 
work  of  a  despot.  In  England  alone  of  all  European  coun- 
tries are  the  courts  free  and  independent,  and  in  England 
alone  of  all  the  countries  of  Europe  does  the  lawyer  occupy 
his  proper  place  in  the  social  economy.  The  first  condition 
of  real  political  freedom  is  a  free  judiciary,  and  it  is  only 
under  a  free  judiciary  that  a  great  bar  can  be  evolved  to 
practise  before  it — that  the  lawyer  can  be  an  artist. 

To  my  mind  the  longest  single  step  that  civilization  has 
ever  taken  was  the  evolution  of  the  art  of  cross-examination, 
and  it  was  the  work  entirely  of  our  race  and  our  profession. 
Before  that  art  was  evolved  a  disputed  question  of  fact  was 
usually  settled  by  the  method  known  as  the  "  wager  of 
battle."  The  plaintiff  asserted  a  fact,  the  defendant  denied 
it,  and  then  they  or  their  champions  took  their  horses  and 
their  spears  and  fought  it  out  to  see  who  told  the  truth. 
There  are  some  things  in  favor  of  this  method  of  trial.  It 
was  speedy  and  decisive.  The  jury  never  disagreed.  The 
judge  never  set  aside  the  verdict  and  judgments  were  never 
reversed  on  appeal,  but,  notwithstanding,  it  was  not  alto- 
gether satisfactory.  A  small  man  stood  a  poor  chance  of 
having  his  word  taken  against  a  big  one  unless  he  could 
get  a  champion  to  fight  for  him,  and  champions  came  high. 

Later,  when  they  got  to  administering  oaths  in  the  courts 
of  justice,  the  plaintiff  and  defendant  each  tried  to  out- 
number the  other  in  the  matter  of  witnesses,  and  seven  wit- 
nesses always  prevailed  over  six.  This  was  a  straight- 
forward and  easy  method  of  settling  the  controversy.  The 
judge  or  jury  had  only  to  count  noses.    It  did  not  require 


10 


great  intellectual  acumen  to  decide  the  case.  But  still  even 
this  was  unsatisfactory  to  our  restless  ancestors.  There 
arose  a  race  of  swearers,  and  the  man  who  had  the  most 
money  to  pay  subpoena  fees  won  his  case.  Perjury  became 
prevalent,  and  a  state  of  things  came  to  pass  compared  with 
which  the  swearing  off  of  personal  taxes  downtown  in  the 
Stewart  Building  every  year  would  be  considered  an  inno- 
cent diversion.  The  name  of  the  lawyer  who  first  essayed 
to  cross-examine  a  witness  to  determine  whether  he  was 
telling  the  truth  or  a  lie  has  been  lost  in  the  mists  of  history. 
It  is  a  pity,  for  he  started  the  greatest  reform  that  the  world 
has  ever  known.  With  that  lawyer  and  on  that  day  the  art 
of  practising  law  really  began.  Thenceforward  and  for- 
ever there  was  some  test  other  than  that  of  physical  strength 
or  elasticity  of  conscience  by  which  truth  could  be  deter- 
mined. The  name  of  the  man  is  unknown.  Even  the  cen- 
tury in  which  he  lived  is  unknown,  although  if  we  should 
put  it  in  the  twelfth  or  thirteenth  century  we  should  not  go 
far  wrong ;  but  his  race  and  his  country  are  not  unknown. 
The  art  of  cross-examination  was  developed  by  our  race 
among  our  ancestors  on  the  green  isle  of  Albion.  It  has 
evolved  from  that  day  to  this,  and  to-day  it  is  the  most 
important  art  known  to  our  civilization.  The  services  of 
the  lawyer  who  can  cross-examine  are  sought  wherever 
courts  are  open,  and  the  great  cross-examiner  can  win  more 
compensation  in  less  time  than  any  other  man  who  works 
for  his  bread.  I  will  send  my  office  clerk,  if  need  be,  to 
argue  a  case  in  the  Court  of  Appeals,  but  I  will  cross-exam- 
ine the  witnesses  myself. 

The  lawyer  as  an  artist  first  took  his  place  in  history  with 
the  practice  of  the  art  of  cross-examination. 

There  is  another  characteristic  of  our  profession  as  prac- 
tised among  the  peoples  of  our  race.  It  is  their  fidelity. 
Lawyers  in  their  everyday  lives  are  perhaps  not  better  than 
other  men,  though  I  certainly  would  not  concede  superiority 


ii 


to  any  other  class  in  the  community.  They  have  their  weak- 
nesses and  their  vices.  They  love  money,  like  other  men, 
and  they  will  sometimes  violate  the  moral  and  the  legal  law 
to  get  it,  but  the  lawyer  is  faithful  to  his  client.  During 
the  practice  of  law  in  this  city  for  a  period  longer  than 
most  of  you  have  lived,  coming  in  contact  as  I  have  with 
many  thousand  members  of  our  profession,  in  matters 
almost  numberless,  1  have  never  found  half  a  dozen  in- 
stances where  a  lawyer  abused  the  trust  that  his  client  had 
confided  in  him.  I  have  known  members  of  my  profession 
commit  about  all  the  other  sins  there  are  on  the  calendar, 
and  do  about  all  the  other  mean  things  that  could  be  con- 
ceived, but  where  a  client  has  trusted  his  case  to  them  they 
have  been  faithful  to  that  trust.  It  is  not  a  peculiarity  of 
great  lawyers  or  of  lawyers  of  unusual  moral  fibre.  The 
youngest  member  of  the  profession  just  admitted  to  the  bar, 
or  the  wickedest  lawyer  in  the  town,  may  be  as  faithful  as 
the  lawyer  whose  head  is  crowned  with  silver  and  who  has 
won  his  honors  and  his  fame.  There  is  a  degree  of  fidelity 
of  counsel  to  client  that  is  not  found  in  any  other  relation- 
ship in  life.  Husbands  betray  their  wives,  children  their  par- 
ents, business  men  their  partners,  common  men  their  friends  ; 
but  where  the  Saxon  race  is  dominant  and  the  English 
language  is  spoken  lawyers  do  not  betray  their  clients. 
Fidelity  to  a  trust  is  artistic,  and  in  this  as  in  other  respects 
the  lawyer  is  an  artist. 

The  lawyer  is  able  to  put  himself  in  another's  place  as  no 
other  man  can.  He  is,  therefore,  able  to  give  advice 
to  his  client  which  is  generally  sane  and  safe  even  upon  sub- 
jects with  which  he  is  little  familiar.  The  man  who  consults 
his  lawyer  about  an  intricate  business  problem  usually  gets 
good  advice,  and  if  the  lawyer  was  consulted  oftener  and 
his  advice  followed  more  closely  there  would  be  more  uni- 
form business  success  and  fewer  great  business  disasters. 
The  fact  is  that  the  lawyer  is  trained  from  the  beginning 


12 


of  his  practice  as  no  other  man  in  the  community  is  trained, 
to  act  for  another  man.  The  true  lawyer  will  never  com- 
plicate himself  so  that  he  is  unable  to  look  at  any  question 
from  his  client's  standpoint.  He  will  of  all  things  avoid 
having  any  personal  interest  in  the  matter  in  controversy. 
He  will  save  himself  and  all  his  energies  to  be  used  in  his 
client's  behalf.  Our  profession  is  pre-eminently  a  profes- 
sion of  trust  and  confidence,  and  it  is  the  glory  of  the  pro- 
fession that  that  trust  and  confidence  is  so  seldom  misplaced. 

The  pre-eminently  successful  lawyer  is  not,  therefore, 
necessarily  the  man  of  pre-eminent  learning  or  the  man  of 
ripe  and  mature  judgment  upon  legal  questions.  He  is  the 
man  who  can  pierce  the  armor  of  a  lying  witness  on  cross- 
examination,  who  can  present  the  facts  of  his  case  clearly, 
succinctly  and  plausibly,  who  can  advise  his  client  wisely 
and  convincingly  and  promptly,  and  can  guide  him  with 
unerring  steps  round  all  the  pitfalls  of  his  business  life — 
the  lawyer  who  is  the  true  artist. 

Much  has  been  said  and  written  about  the  limits  of  the 
lawyer's  profession.  I  claim  for  it  wide  limits.  I  reject 
petty  limitations.  Any  work  is  within  the  lawyer's  sphere 
that  he  can  do  better  than  anyone  else,  provided  only  it  is 
done  for  some  one  else.  The  only  limitation  I  put  on  our 
professional  activities  is  that  we  must  always  be  working 
for  another  man.  The  lawyer  must  never  be  personally 
interested  in  the  result.  He  must  always  be  a  representative, 
not  a  principal. 

But  if  his  client  is  on  the  verge  of  failure  because  of  bad 
business  methods,  it  is  not  unprofessional  for  him  to  take 
the  initiative  and  inaugurate  business  reforms  that  will  save 
the  situation.  If  his  client  needs  capital  for  his  business 
he  may  properly  put  him  in  contact  with  men  who  can 
furnish  it  and  help  him  get  it,  only  it  must  not  be  the  law- 
yer's own  money,  for  then  he  becomes  a  business  partner 
and  not  a  lawyer. 


13 


If  the  initiative  is  to  be  taken  in  the  organization  of  some- 
thing to  which  the  business  man  is  unaccustomed  or  inade- 
quate, the  lawyer  may  properly  take  that  initiative.  He  may 
be  president  of  large  corporations  and  the  responsible  head 
of  great  industrial  organizations  without  losing  his  profes- 
sional identity  or  lowering  his  professional  flag.  There  are 
no  better  railroad  presidents  in  this  broad  land  of  ours  than 
those  who  have  been  taken  from  the  ranks  of  our  profession, 
and  there  are  no  more  honorable  lawyers  than  those  who 
have  demonstrated  their  superior  executive  capacity  in 
executive  positions.  There  are  no  safer  bank  presidents 
than  those  who  belong  to  our  profession,  and  many  lawyers 
have  shed  lustre  on  it  by  their  achievements  in  finance.  In 
every  position  where  trust  or  responsibility  has  to  be  im- 
posed by  one  or  many  men  on  another  man,  the  lawyer  may 
properly  occupy  the  position  of  trust  and  responsibility. 
Whenever  there  is  work  to  be  done  for  others  that  other 
men  cannot  do,  the  lawyer  may  properly  do  it.  The  lawyer 
ought  to  be  the  most  capable  man  in  every  community  in 
which  he  lives,  and  as  the  most  capable  man  he  must  per- 
force occupy  the  position  of  greatest  responsibility. 

When  it  comes  to  practising  in  the  courts  he,  of  course, 
has  no  competitor.  Justice  represents  man's  highest  evolu- 
tion. Its  administration  must  be  in  the  hands  of  the  best 
and  most  capable  of  men.  The  approach  to  the  Temple  of 
Justice  should  be  opened  wide  to  suitors,  but  none  must  be 
allowed  to  assist  in  its  administration  except  the  very  best 
and  most  worthy. 

I  claim,  therefore,  for  our  profession  the  primacy  among 
professions.  The  soldier  and  the  sailor  risk  their  lives  in 
defense  of  the  institutions  and  flag  of  their  country;  but 
it  is  the  lawyer  who  formulates  and  maintains  those  institu- 
tions and  makes  that  flag  worth  saving.  The  clergyman 
preaches  from  the  pulpit  the  gospel  of  peace  on  earth ;  but 
it  is  the  practical  work  of  the  lawyer  that  makes  that  peace 


possible.  The  physician  cures  the  physical  ills  of  humanity  ; 
but  in  these  days,  when  we  have  found  that  perhaps  the 
highest  work  of  the  Legislature  is  in  enacting  a  proper  sani- 
tary code,  the  attorney  for  the  Health  Board  often  saves 
more  lives  than  a  hundred  doctors.  The  engineer  lays  his 
iron  rails  under  mountains,  across  plains  and  over  conti- 
nents; but  he  cannot  put  his  pick  into  the  ground  or  lift  his 
first  shovelful  of  earth  until  the  lawyer  has  got  him  his 
right  of  way.  Men  of  science  delve  deep  into  the  mysteries 
of  Nature  and  try  to  wrest  from  unwilling  Earth  the  secrets 
of  her  processes ;  but  it  is  the  lawyer  who  defends  the 
patentee  and  makes  the  discoveries  of  men  of  science  valu- 
able to  themselves  and  available  to  the  community.  In  these 
days  there  are  other  professions  coming  up  every  day  and 
on  every  side,  but  they  all  depend  for  their  success  upon 
their  abiding  faith  that  the  lawyer  will  maintain  existing 
institutions  and  protect  vested  rights. 

The  crowning  triumph  of  our  present  civilization  is  in 
the  successful  establishment  and  maintenance  of  our  existing 
courts  of  justice.  It  is  the  perfection  of  these  that  makes 
property  possible  and  life  worth  living.  It  is  the  existence 
of  these  and  the  respect  paid  to  them  by  the  community 
that  makes  social  life  and  the  perpetuation  of  social  insti- 
tutions practicable.  It  is  to  our  courts  of  justice  more  than 
to  any  other  institution  of  modern  civilization  that  we  owe 
all  that  lifts  modern  man  above  the  barbarity  of  his  primitive 
ancestors.    All  this  was  the  work  of  the  lawyer. 

The  last  step  that  has  been  taken  in  completing  the  struct- 
ure of  our  modern  civilization  and  in  bringing  to  man  the 
full  fruition  of  his  untold  generations  of  struggle  is  the 
establishment  of  the  International  Tribunal  of  The  Hague 
for  the  settlement  of  differences  between  nations ;  the  substi- 
tution of  an  international  court  of  justice  in  the  place  of 
the  marshalling  of  soldiers  upon  tented  fields, — of  the  law- 
yer's brief  for  the  Gatling  gun.    That  step,  too,  I  am  proud 

*5 


to  say,  was  very  largely  the  work  of  lawyers.  I  remember 
with  great  pride  that  it  was  the  New  York  State  Bar  Asso- 
ciation that  proposed  the  first  practical  plan  for  an  inter- 
national court.  That  plan  was  in  the  hands  of  New  York's 
great  citizen,  Andrew  D.  White,  when  he  won  his  great 
triumph  at  the  Hague  Conference,  in  the  establishment  of 
the  Hague  Tribunal,  and  it  was  that  plan  that  was  adopted 
in  all  its  essential  features  by  the  Conference  and  by  the 
nations  of  the  earth  that  ratified  their  work. 

There  is  nothing  in  which  progress  in  modern  times  is 
more  marked  than  in  the  methods  of  writing  history,  and 
modern  history  is  coming  to  give  a  lesser  place  to  the  soldier 
and  a  greater  place  to  the  lawyer  in  the  evolution  of  the 
world's  civilization.  Germans  are  proud  of  their  Von 
Moltke  the  soldier,  but  they  are  prouder  still  of  Bismarck 
the  Chancellor.  Frenchmen  honor  their  Napoleon,  but  I 
think  they  honor  him  as  much  for  his  code — the  code  of 
despotism  though  it  be — as  for  his  victories  in  battle.  No 
one  would  ever  ask  the  men  of  Holland  to  place  any  name 
out  of  the  multitude  of  great  names  in  their  proud  history 
above  that  of  William  the  Silent.  But  we  in  this  day  and 
generation  are  coming  to  give  them  a  double  crown  of 
glory,  and  to  place  side  by  side  with  that  of  the  Prince  of 
Orange  the  name  of  their  own  great  Hugo  Grotius. 

Englishmen  celebrate  the  destruction  of  the  Armada  and 
the  victories  of  Blenheim  and  Waterloo  and  Trafalgar,  but 
they  celebrate  with  equal  enthusiasm  the  occurrence  on  that 
green  isle  of  Runnymede,  where  one  afternoon  the  barons 
wrested  from  the  unwilling  hands  of  King  John  the  Great 
Charter  of  Anglican  liberty,  and  they  celebrate,  too,  the 
memory  of  those  brave  and  learned  men  in  Parliament  and 
out  of  it  who  gave  to  England  and  to  us  their  Bill  of  Rights. 
They  celebrate  the  memory  of  John  Hampden,  who  refused 
to  pay  ship  money,  even  more  than  that  of  Oliver  Cromwell, 
who  won  the  battle  of  Naseby.    They  write  in  letters  of 

16 


ever-living  light  the  name  of  their  William  of  Orange,  the 
great  grandson  of  a  great  grandfather,  but  they  celebrate 
his  memory  not  so  much  because  he  hurled  back  the  legions 
of  Louis  of  France  as  because  of  what  he  did  to  found  on 
its  present  enduring  basis  the  everlasting  structure  of  their 
and  our  free  institutions.  The  victory  won  by  their  Lord 
Grey  in  the  passage  of  the  Reform  Bill  was  greater  than 
that  won  by  Wellington  at  Waterloo.  Englishmen  honor 
Wilberforce  as  much  as  they  honor  Nelson,  and  no  soldier 
or  sailor  of  modern  times  has  ever  occupied  a  place  in  their 
hearts  equal  to  that  occupied  by  John  Bright  and  William 
Ewart  Gladstone. 

We  Americans  honor  the  great  name  of  our  own  great 
Washington,  but  history  is  now  writing  Washington  at  his 
greatest  and  his  best  not  as  commander  of  the  forces  of  the 
Revolutionary  War,  but  as  Chairman  of  the  Constitutional 
Convention  of  1789,  and  as  first  President  of  the  United 
States.  Alexander  Hamilton,  side  by  side  with  Lafayette, 
stormed  the  forts  at  Yorktown,  but  we  have  almost  for- 
gotten that  brave  and  brilliant  exploit  in  our  memory  of 
what  he  did  in  establishing  upon  a  firm  and  enduring 
foundation  the  Government  of  the  United  States.  All  over 
the  land  we  rear  monuments  to  the  memory  of  Greene,  and 
Putnam,  and  Sullivan,  and  Morgan,  and  Wayne,  and  other 
heroes  of  the  Revolution,  but  we  are  now  coming  to  recog- 
nize that  John  Marshall,  the  lawyer,  did  more  to  make  the 
American  nation  than  all  of  them. 

Half  the  nation  celebrates  with  loud  enthusiasm  the  mem- 
ory of  Andrew  Jackson,  and  the  other  half  celebrates  it  too, 
only  a  little  more  quietly ;  but  it  is  Andrew  Jackson,  author 
of  the  Nullification  proclamation,  rather  than  Andrew  Jack- 
son, the  victor  at  New  Orleans,  whose  memory  we  most 
honor. 

When  we  write  the  history  of  our  Civil  War  we  cover 
with  glory  the  names  of  Grant,  and  Sherman,  and  Sheridan, 


'7 


and  Farragut,  and  other  soldiers  and  sailors ;  but  towering 
way  above  them  all  stands  the  sublime  figure  of  Abraham 
Lincoln,  the  lawyer. 

A  few  years  ago  we  were  welcoming  home  the  heroes  of 
the  Spanish  War.  We  showered  our  honors  upon  Dewey, 
and  Sampson,  and  Schley,  and  Merritt,  and  Shafter,  and 
Joe  Wheeler,  and  Roosevelt ;  but  while  we  have  been  honor- 
ing all  these  men — our  soldiers  and  our  sailors — with  well- 
deserved  honors,  we  have  never  forgotten  what  we  owed 
to  the  cool  head  and  steady  hand  of  the  Supreme  Com- 
mander-in-Chief through  that  war  of  the  Army  and  Navy 
of  the  United  States — William  McKinley,  the  lawyer.  Nor 
have  we  forgotten  that  the  practical  results  of  the  war  were 
obtained  for  our  nation  very  largely  by  the  lawyer  members 
of  the  Peace  Commission  in  Paris  and  by  the  labors  of 
William  H.  Taft — lawyer  and  judge — in  the  Philippines. 
The  best  Secretary  of  the  Navy  we  ever  had  was  Benjamin 
F.  Tracy,  a  lawyer.  The  best  Secretary  of  War,  Elihu 
Root,  another  lawyer.  And  they  are  both  better  lawyers 
to-day  than  they  were  before  they  were  at  the  head  of  the 
army  and  navy  departments  of  the  United  States. 

I  have  thus  far  spoken  of  lawyers  in  the  masculine  gender. 
If  I  had  so  spoken  as  of  the  time  when  I  commenced  the 
practice  of  the  law  here  in  New  York  I  should  not  need 
to  make  any  explanation.  When  I  came  to  the  bar  I  do 
not  remember  that  there  was  a  woman  lawyer  in  all  the 
world.  Now  we  find  women  lawyers  in  the  courts  of  almost 
all  the  States  of  the  American  Union.  It  used  to  be  thought 
a  good  joke  to  consult  a  woman  lawyer,  but  a  great  many 
of  us  have  found  it  was  something  more  than  a  joke  to 
have  one  retained  upon  the  other  side  of  the  case. 

There  is  a  story  told  of  a  dusky  queen  on  some  island  in 
the  South  Pacific  not  ten  thousand  miles  from  that  Manila 
Bay  where  Dewey  one  Sunday  morning  planted  the  Stars 
and  Stripes  seven  thousand  miles  farther  west  than  it  had 

18 


ever  been  planted  before.  This  queen  had  in  some  way 
acquired  a  greater  knowledge  and  insight  into  things  than 
her  subjects,  and  she  viewed  with  disfavor  the  superstition 
that  she  saw  around  her.  One  day  she  called  her  subjects 
together  and  she  said  to  them :  "  You  think  that  yonder  burn- 
ing mountain  is  a  god.  It  is  not.  That  is  simply  common 
ordinary  fire,  just  like  the  fire  which  you  put  under  your  ket- 
tles when  you  cook  your  dinners,  only  there  is  more  of  it.  It 
is  a  volcano,  a  natural  phenomenon.  Do  you  not  believe  me? 
Come  and  see!"  And  they  followed  her  to  the  foot  of  the 
mountain,  and  they  saw  her  climb  its  craggy  summit,  and 
they  heard  her  revile  the  god  that  they  supposed  to  be  within, 
and  they  saw  her  pick  up  sticks  and  stones  and  throw  them 
into  the  crater  in  derision,  and  they  saw  her  pull  her  slipper 
from  her  dusky  foot  and  throw  it  in,  and  they  heard  her 
say:  "If  you  be  really  a  god,  come  forth  and  avenge  the 
insult !"  But  the  mountain  burned  on  and  harmed  her  not, 
and  she  led  her  people  back,  and  the  superstition  that  the 
burning  mountain  was  a  god  was  gone  forever. 

A  generation  or  so  ago  some  other  women,  fairer  than 
my  dusky  queen,  but  with  the  same  proud  spirit,  said  to 
their  sisters :  "  The  idea  that  prevails  throughout  the  world 
that  a  woman  must  not  work ;  that  she  must  have  no  ambi- 
tions ;  that  she  must  be  contented  to  follow  in  man's  path 
and  do  his  bidding,  is  all  wrong.  Do  you  not  believe  us? 
We  will  show  you.  We  will  go  down  into  the  marts  of 
trade  and  we  will  win  business  success  equal  to  that  of  our 
brothers.  We  will  go  into  the  professions  and  we  will  win 
a  place  on  an  even  footing  with  them  there  and  gain  equal 
honors  and  equal  fame.  We  will  go  everywhere  that  man 
goes  and  do  everything  that  he  does,  and  be  successful  as 
he  is  successful,  doing  our  full  share  of  the  world's  work 
and  bearing  our  full  share  of  the  world's  burdens,  and  then 
we  will  go  back  to  our  parlors  and  be  the  loveliest  women 


19 


in  the  land."  And  they  did  it.  And  the  superstition  that 
woman  to  be  lovely  must  be  useless  is  gone  forever. 

Among  the  professions  which  she  chose  was,  fortunately, 
our  profession  of  the  law,  and  every  year  more  and  more 
women  are  coming  to  practise  in  the  courts  of  the  American 
nation,  and  to  do  their  duty  as  lawyers  in  the  community, 
and  every  year  their  influence  is  being  felt  in  these  courts 
and  in  the  community  more  and  more  for  civilization,  for 
humanity  and  for  righteousness,  and  now  when,  here  in 
this  great  city  of  New  York,  I  find  such  a  flourishing 
Women  Lawyers'  Club  as  is  meeting  here  to-night,  I  feel 
that  the  future  of  the  land  I  love  so  well  is  better  assured 
than  ever  before,  and  that  the  prosperity  and  happiness  of 
the  American  people  has  a  broader  foundation  now  that  its 
basis  is  laid  upon  the  ability  and  energy  of  both  sexes  instead 
of  one  of  them — now  that  the  foundation  is  as  broad  as  the 
structure  that  is  reared  upon  it. 

I  am  a  little  late  in  doing  it,  but  it  is  my  first  opportunity. 
Women  lawyers  of  New  York,  I  bid  you  welcome  to  the 
profession  that  you  have  already  so  well  begun  to  adorn. 

Women  have  already  been  at  the  bar  in  this  State  long 
enough  to  enable  us  to  see  the  fulfillment  of  good  things 
and  the  promise  of  better.  I  happen  to  know  that  Mrs. 
Fannie  H.  Carpenter  has  taken  important  cases  through  to 
the  Court  of  Appeals  and  won  victory  and  fame  in  doing  so. 
She  is  a  lawyer  that  is  an  artist. 

I  happen  to  know  something  also  of  the  work  which  the 
Legal  Aid  Society  has  done  during  the  last  eight  years. 
Charitable  organizations  generally  I  think  are  apt  to  do  as 
much  harm  as  good,  but  the  Legal  Aid  Society  is  different. 
It  does  not  dole  out  charity ;  it  helps  people  to  assert  and 
maintain  their  rights.  It  does  not  destroy  the  self-respect 
of  those  whom  it  helps ;  it  increases  it.  It  has  been  a  most 
potent  force  in  this  community  for  the  righting  of  wrong 
and  the  prevention  of  oppression.    I  know  of  no  one  better 


2C 


deserving  the  gratitude  of  this  community  than  Mrs.  Rosalie 
Loew  Whitney  for  the  professional  work  that  she  has  done 
in  connection  with  the  Legal  Aid  Society.  She,  too,  is  a 
lawyer  that  is  an  artist. 


0 


21 


